Opinion
No. 5-08-0221
Rule 23 Order Filed July 9, 2010; July 29, 2010.
Appeal from the Circuit Court of St. Clair County, No. 85-CF-181, Brian Babka, Judge, presiding.
Michael J. Pelletier, State Appellate Defender, Charles M. Schiedel, Deputy Defender, Duane E. Schuster, Assistant Appellate Defender, Office of the State Appellate Defender, Springfield, IL, Attorneys for Appellant.
Hon. Robert Haida, State's Attorney, St. Clair County, Belleville, IL; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Sharon Shanahan, Contract Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, IL, Attorneys for Appellee.
The defendant, Thomas G. Inman, appeals the first-stage dismissal of his postconviction petition. The defendant was originally convicted of one count each of murder and attempted murder in 1985. He was sentenced to natural life in prison for the murder and 30 years for the attempted murder, to be served concurrently. The defendant subsequently filed a postconviction petition challenging the natural-life sentence on Apprendi grounds ( Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)). This court vacated that sentence and remanded the cause to the trial court for resentencing. The defendant's current petition challenges the sentences imposed on the remand, on the basis of double jeopardy. The postconviction court dismissed the petition because the defendant did not obtain leave of the court to file a successive petition. On appeal, the defendant argues that his petition was not a successive petition because it was the first petition directed at the order imposing a new sentence in 2006. We reverse.
In 1985, the defendant was charged with murder, attempted murder, and armed violence. The charges stemmed from a fight that occurred after the defendant and two of his friends were involved in an argument at a bar. The defendant and his friends left the bar and waited outside in their vehicle for the victim and his friend to leave. They then followed the victim and his friend and forced their car off the road. In the ensuing fight, the victim was stabbed multiple times and died of his injuries. His friend sustained serious injuries but survived.
The defendant was convicted on all three charges, and the court sentenced him to natural life in prison for the murder and 30 years for the attempted murder, to be served concurrently. The court did not impose a sentence for the armed violence charge, finding that it merged with the murder conviction, but the court did not vacate the conviction on that charge. On direct appeal, this court vacated the armed violence conviction but affirmed the convictions on the remaining two charges. People v. Inman, No. 5-85-0632 (September 25, 1987) (unpublished order under Supreme Court Rule 23 (107 Ill. 2d R. 23)).
In 1988, the defendant filed his first petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq. (now 725 ILCS 5/122-1 et seq. (West 2008))). In it, he alleged that he received ineffective assistance of counsel, his conviction resulted from perjured testimony, and newly discovered exculpatory evidence required that he be given a new trial. The court denied the petition after a hearing. The defendant appealed, and this court affirmed that ruling. People v. Inman, No. 5-89-0863 (March 12, 1992) (unpublished order under Supreme Court Rule 23 (134 Ill. 2d R. 23)).
In 1992, the defendant filed a second postconviction petition challenging only his original sentence. This petition was dismissed on the grounds that it was a successive petition filed without leave of the court. The defendant appealed, and this court affirmed the court's order dismissing the petition. People v. Inman, No. 5-92-0877 (April 20, 1994) (unpublished order under Supreme Court Rule 23 (134 Ill. 2d R. 23)).
In August 2000, the defendant filed a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure ( 735 ILCS 5/2-1401 (West 1998)), which the court treated as a postconviction petition. This time, the defendant challenged his natural-life sentence on the basis of the United States Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), which had recently been decided.
On June 21, 2001, the postconviction court entered an order finding that the sentence violated the rule of Apprendi. The sentence had been based on the trial judge's finding that the murder was committed in a heinous and brutal manner, a finding which, under Apprendi, could support an extended-term sentence only if it was made by a finder of fact beyond a reasonable doubt. The postconviction court vacated the defendant's sentences and noted that there were two options: the State could retry the defendant and again seek an extended-term sentence of natural life in prison if the jury made the requisite finding beyond a reasonable doubt, or the court could instead simply hold a new sentencing hearing. The court directed the State to notify the court and the defendant which option it intended to pursue. The court also noted that if the State chose the option to seek only a new sentencing hearing, the court would need to determine whether the sentencing laws in effect in 1985 gave the court the discretion to impose consecutive sentences.
On August 30, 2001, the State filed a motion to reconsider that ruling, which the court denied. The State then appealed; however, its appeal was dismissed for a lack of jurisdiction on the basis that it was not timely filed. People v. Inman, No. 5-01-0741 (September 8, 2003) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)).
Shortly after its appeal was dismissed, the State filed a notice of its intent to seek only a new sentencing hearing. In May 2004, the parties submitted memoranda addressing the issue of the court's discretion to impose consecutive sentences. The State's arguments focused on statutory authority; however, the defendant's pro se memorandum argued that imposing a consecutive sentence would violate principles of double jeopardy and ex post facto. On May 28, 2004, the court held a hearing in the matter and entered an order ruling that it did have discretion to impose consecutive sentences. At the hearing, the defendant, through counsel, announced that he intended to file a motion to dismiss the charge of attempted murder on the grounds that the sentence had been fully served taking into account credit for good behavior that was available under the 1985 sentencing laws. The parties agreed to continue the sentencing hearing to allow the defendant to file the motion and the State to respond.
On June 4, 2004, the defendant filed the motion to dismiss. On June 18, 2004, the State filed a response. The State pointed out that the postconviction court's ruling vacated only the natural-life sentence for murder and did not address the 30-year sentence for attempted murder. The State thus argued that the defendant's real argument was that principles of double jeopardy would be violated by imposing a consecutive sentence on the murder charge in light of the time the defendant had already served in prison. The court held a hearing on the matter on June 25, 2004.
On July 16, 2004, the court entered an order finding that imposing consecutive sentences would not violate double jeopardy protections. The defendant filed two appeals from this ruling, each of which was dismissed for a lack of jurisdiction on the basis of untimeliness. People v. Inman, No. 5-04-0641 (January 10, 2005) (unpublished order); People v. Inman, No. 5-05-0650 (January 30, 2006) (unpublished order). (We note that it is not clear why the second appeal was filed, and the defendant stated in the petition underlying this appeal that it was filed by counsel without his knowledge.)
The resentencing hearing took place on July 24, 2006. At this point, the defendant had already served 21 years in prison. The court sentenced the defendant to 35 years' imprisonment on the murder conviction, to be served consecutively to the attempted-murder sentence. The court ordered the defendant to be given credit for time already served.
The defendant filed a direct appeal, challenging the consecutive sentences as an abuse of the court's discretion. He did not raise the double jeopardy issue. This court affirmed the sentences on August 28, 2007. People v. Inman, No. 5-06-0422 (August 28, 2007) (unpublished Rule 23 order).
On January 16, 2008, the defendant filed the pro se postconviction petition that forms the basis of this appeal. In his petition, the defendant raised two issues. First, he argued that appellate counsel was ineffective for failing to raise the issue of double jeopardy on direct appeal. In contending that the consecutive sentences violated this principle, he argued that because the original sentences were concurrent, the 21 years he served in prison prior to the resentencing hearing should have been credited against both sentences. He further argued that under the sentencing laws in effect in 1985, he would have been entitled to credit for good behavior in prison. Thus, he reasoned, both sentences would have been fully served before 2006.
In addition, the defendant argued that appellate counsel was ineffective for failing to argue that the trial testimony of the murder victim's friend and a statement of one of the jurors indicated that the jury never intended to convict him of the attempted murder. We note that he does not continue to press this claim on appeal.
On February 7, 2008, the court entered an order finding that the petition was "filed on January 16, 2008," and assigning it to Judge Babka for further proceedings. On March 26, 2008, Judge Babka dismissed the defendant's petition, finding that it was a successive petition filed without obtaining leave of the court. This appeal followed.
The defendant argues that the instant case does not involve a successive petition. In essence, he contends that the July 2006 order imposing a 35-year sentence for his murder conviction, to be served consecutively to his previously imposed sentence for attempted murder, was a final judgment distinct from the final judgment in 1985 that imposed the original sentences in this case. In support of his position, he cites People v. Woods, 193 Ill. 2d 483, 739 N.E.2d 493 (2000). That case involved the timeliness of a single petition for postconviction relief filed after the entry of a single order sentencing the defendant. At issue was the statutory requirement that the petition be filed within three years of the date of the conviction. Woods, 193 Ill. 2d at 486, 739 N.E.2d at 494-95 (relying on 725 ILCS 5/122-1(c) (West Supp. 1997)).
There, the defendant pled guilty to murder, and the court entered an order accepting his guilty plea on July 26, 1994. The court sentenced the defendant on February 7, 1995. Woods, 193 Ill. 2d at 485, 739 N.E.2d at 494. Thus, if the date of the guilty pleas was the date of the conviction, the deadline for filing a timely postconviction petition would have been July 26, 1997. If, on the other hand, the date of the conviction was the date the sentence was imposed, the deadline would have been February 7, 1998. Woods, 193 Ill. 2d at 486,739 N.E.2d at 495. The defendant filed his postconviction petition between these two dates, on August 7, 1997. Woods, 193 Ill. 2d at 485, 739 N.E.2d at 494.
The State argued that the date of the conviction was the date on which the court accepted the defendant's guilty plea, which made the petition untimely. The defendant, by contrast, argued that the date of the conviction was the date on which the court imposed the sentence, thus making his petition timely. Woods, 193 Ill. 2d at 486, 739 N.E.2d at 495. In resolving these arguments, the supreme court first noted that either interpretation was reasonable. Woods, 193 Ill. 2d at 487, 739 N.E.2d at 495. The court then explained that the term "conviction" had been construed to mean each of these dates in different contexts. Woods, 193 Ill. 2d at 487-88, 739 N.E.2d at 495. Ultimately, the court found that, in the context of the Post-Conviction Hearing Act, the date of the conviction should be construed to mean the date of the sentence. Woods, 193 Ill. 2d at 488-89, 739 N.E.2d at 496.
We do not find that Woods answers the precise question before us. The parties agree that the date of the conviction is the date on which the sentence was imposed; the question is whether the sentence imposed in 2006 constitutes a separate order of conviction. We are aware of no case that squarely addresses this question. However, dicta in the First District case of People v. Langston, 342 Ill. App. 3d 1100, 791 N.E.2d 1 (2001), supports the State's contention that the petition is to be considered a successive petition challenging the 1985 conviction.
Langston, like Woods, involved the timeliness of a single petition. There, the defendant challenged his sentence on direct appeal, successfully arguing that the trial court erred in refusing to allow credit for good behavior that was available prior to the enactment of Illinois's truth-in-sentencing law. The cause was remanded to the trial court with directions to amend the mittimus to give the defendant the good-behavior credit. Langston, 342 Ill. App. 3d at 1101-02, 791 N.E.2d at 3. While the appeal was pending, the defendant filed a postconviction petition challenging his conviction. Langston, 342 Ill. App. 3d at 1102, 791 N.E.2d at 3. It did not raise any issues relating to the proceedings on appeal or on remand. Langston, 342 Ill. App. 3d at 1105, 791 N.E.2d at 6. The petition was filed more than three years after the original sentence had been imposed but before the order correcting the mittimus was entered. Langston, 342 Ill. App. 3d at 1101-02, 791 N.E.2d at 2-3.
As in Woods, the parties did not agree on the date of the conviction for purposes of calculating the three-year time limit for filing a postconviction petition. According to the defendant, the time began to run only when the court entered its order correcting the mittimus; according to the State, it began to run when the initial sentence was imposed. Langston, 342 Ill. App. 3d at 1103, 791 N.E.2d at 4.
In accepting the State's argument, the Langston court stated, "[T]he imposition of a sentence, even though later held on appeal to be erroneous, would suffice to lend requisite finality for purposes of filing a postconviction petition as well as an appeal." Langston, 342 Ill. App. 3d at 1104, 791 N.E.2d at 5. The court went on to explain as follows:
"Moreover, our holding herein does not prevent defendant from filing a second or subsequent postconviction petition to raise any deficiencies in the subsequent proceedings regarding his sentence on remand which occurred after the deadline for the filing of the initial postconviction petition. While second or subsequent postconviction petitions are generally prohibited, our supreme court in People v. Flores, 153 Ill. 2d 264, 606 N.E.2d 1078 (1992), has opened the door for second or subsequent petitions in such situations." Langston, 342 Ill. App. 3d at 1104-05, 791 N.E.2d at 5.
This statement describes precisely the scenario involved here. The defendant's petition addresses deficiencies he alleges occurred in proceedings that took place long after his initial sentence had been imposed. Like the Langston court, we do not believe that the mere fact those proceedings resulted in a separate order leads to the conclusion that the petition is not a successive petition. We thus conclude that the rules governing successive postconviction petitions are applicable here.
This conclusion, however, does not end our inquiry. In its order dismissing the defendant's pro se petition, the postconviction court noted that it could not consider the merits of the defendant's petition because the defendant had not "obtained" leave of the court to file his petition. See People v. DeBerry, 372 Ill. App. 3d 1056, 1059-60, 868N.E.2d 382, 384 (2007). Although the court did not expressly state this, implicit in its ruling was a finding that it did not have the authority to grant leave to file sua sponte. On appeal, the State argues that this implicit finding was correct. More precisely, the State contends that the court was precluded from examining the petition to determine whether leave to file should be granted absent an express request. See People v. Daniel, 379 Ill. App. 3d 748, 751, 886 N.E.2d 383, 386 (2008). The supreme court's recent decision in People v. Tidwell, 236 Ill. 2d 150, 923 N.E.2d 728 (2010), however, makes it clear that a dismissal is not required under the circumstances present here.
Before considering the merits of this issue, we note that the defendant has never argued to this court that his petition was a permissible successive petition; he has always maintained that it was not successive. Although Tidwell was decided after the briefing and oral argument in this case, the defendant did not file a motion for leave to cite Tidwell as additional authority. Arguments not raised by an appellant are waived on appeal. 210 Ill. 2d R. 341(h)(7). However, waiver is a limitation on the parties, not the court. A reviewing court may reach the merits of a point that is not raised by the appellant or a point that is raised but not argued "in furtherance of its responsibility to reach a just result." Welch v. Johnson, 147 Ill. 2d 40, 48, 588 N.E.2d 1119, 1122 (1992).
The section of the Post-Conviction Hearing Act governing the filing of successive appeals does not explicitly require a defendant to file a motion for leave to file a successive petition. It does, however, provide that such a petition may not be filed "without leave of the court." 725 ILCS 5/122-1(f) (West 2006). Moreover, the petition cannot be deemed "filed" unless and until the court grants leave to file it. People v. LaPointe, 227 Ill. 2d 39, 44, 879 N.E.2d 275, 278 (2007).
The statute provides guidance to courts for determining whether leave to file a successive petition should be granted, by codifying the cause-and-prejudice test of People v. Pitsonbarger, 205 Ill. 2d 444, 793 N.E.2d 609 (2002). The statute does not, however, provide any explicit guidance to defendants on what procedure they must follow in order to obtain leave of the court to file a successive petition. As this court noted in People v. Brockman, "The statute does not specifically state that a defendant must obtain leave of the court before filing a successive petition, but that is the implication of the statute." (Emphasis in original.) People v. Brockman, 363 Ill. App. 3d 679, 688, 843 N.E.2d 407, 415 (2006). We note that our decision in Brockman did not specify what a defendant must do to obtain leave to file the petition, an issue the supreme court addressed more directly in Tidwell.
In People v. DeBerry, relied upon by the postconviction court, the Fourth District followed our holding in Brockman. The DeBerry court went further, holding that the statute "unequivocally requires that a defendant must obtain leave of [the] court before filing a successive petition, and if a defendant fails to do so, the court, whether sua sponte or on the State's motion, should dismiss any such petition." (Emphases in original.) DeBerry, 372 Ill. App. 3d at 1059-60, 868 N.E.2d at 384. The court further held, "[T]he court need not-and should not-concern itself with the merits of any claims, contentions, or arguments that the petition contains." DeBerry, 372 Ill. App. 3d at 1060, 868 N.E.2d at 384. We note that there is a difference between considering the merits of the defendant's contentions and examining the petition to determine whether the cause-and-prejudice test has been met. The DeBerry court did not discuss this distinction, but it becomes significant in light of the supreme court's subsequent holding in Tidwell.
In People v. Daniel, cited by the State on appeal, the Fourth District went even further. There, a defendant filed a successive petition for postconviction relief. Although he did not file a motion requesting leave to file the petition, the petition itself contained an express request for leave to file. The court pointed out that neither party mentioned this fact in their brief. Daniel, 379 Ill. App. 3d at 749, 886 N.E.2d at 385. In holding that a separate motion for leave to file was required, the court found that this was the implication of its holding in DeBerry. Daniel, 379 Ill. App. 3d at 750, 886 N.E.2d at 386. The court further found that a separate motion was necessary as a practical matter because "the court could easily miss the request for leave buried within a petition, as both parties apparently did in this case." Daniel, 379 Ill. App. 3d at 751, 886 N.E.2d at 386.
In Tidwell, the supreme court endorsed the requirement in Brockman and DeBerry that a defendant "obtain leave" of the court to file a successive postconviction petition; however, the court took a much broader view of the procedural mechanisms for obtaining leave. There, a defendant filed a successive petition that was not accompanied by a motion for leave to file and did not contain an express request for leave to file. The postconviction court "considered the allegations of defendant's petition as they bore upon the threshold issue of cause and prejudice." Tidwell, 236 Ill. 2d at 154, 923 N.E.2d at 731. The court concluded that the allegations of the petition did not satisfy the cause-and-prejudice test, and accordingly, it denied leave to file the successive petition. Tidwell, 236 Ill. 2d at 154, 923 N.E.2d at 731.
On appeal, the First District found that an express request for leave to file was a prerequisite to obtaining a ruling granting or denying leave to file a successive petition. The court thus declined to review the postconviction court's detailed order denying leave to file the petition. Tidwell, 236 Ill. 2d at 155-56, 923 N.E.2d at 731-32.
The supreme court found that neither a separate motion nor an express request was necessary. In reaching this conclusion, the court first noted the vague nature of the statute, explaining as follows:
"The statute informs us that `leave' may only be granted where defendant `demonstrates cause for his or her failure to bring the claim in his or her initial post[]conviction proceedings and prejudice results from that failure.' 725 ILCS 5/122-1(f) (West 2006). No other procedural requirements are included in the statute. There is no mention of a prerequisite motion seeking `leave,' nor even of an obligatory request." Tidwell, 236 Ill. 2d at 157, 923 N.E.2d at 732.
The court further explained that, in general, courts have inherent authority to grant leave to file or amend pleadings even without a specific request. Tidwell, 236 Ill. 2d at 158, 923 N.E.2d at 733. The court then pointed out that it is "common sense" to assume that a defendant who submits a successive petition does so because he wants to be allowed to file it. Tidwell, 236 Ill. 2d at 161, 923 N.E.2d at 734.
The court placed two limitations on its holding, however. First, although the court found that a defendant is not required to expressly request leave to file a successive postconviction petition, the court stated that a defendant still bears the burden of obtaining that leave. The court explained as follows:
"[I]t is incumbent upon defendant, by whatever means, to prompt the circuit court to consider whether `leave' should be granted, and obtain a ruling on that question, i.e., a determination as to whether defendant has demonstrated cause and prejudice. In most cases, this will require a motion or request and an articulated argument ***, but that is not necessarily so." (Emphasis in original.) Tidwell, 236 Ill. 2d at 157, 923 N.E.2d at 733.
In essence, the postconviction court can grant leave to file a successive postconviction petition, even absent a request for leave, if "documents submitted by a defendant supply an adequate basis for a ruling on the threshold cause-and-prejudice question." Tidwell, 236 Ill. 2d at 152, 923 N.E.2d at 730. Presumably, this includes the petition itself.
The second limit to the holding in Tidwell is that while a court has the authority to grant leave to file sua sponte, it is not required to do so. Tidwell, 236 Ill. 2d at 158, 923 N.E.2d at 733. Rather, the court has the discretion to rule sua sponte. Tidwell, 236 Ill. 2d at 158, 923 N.E.2d at 733. In the instant case, the postconviction court interpreted DeBerry to preclude it from exercising that discretion. We note that Tidwell did not overrule either DeBerry or this court's decision in Brockman (Tidwell, 236 Ill. 2d at 156, 923 N.E.2d at 732 (citing Brockman with approval)); however, we do not believe that the postconviction court's interpretation remains valid in the wake of Tidwell. Because the court incorrectly concluded that it did not have the authority to even consider whether the allegations in the defendant's petition and supporting documentation were sufficient to demonstrate cause and prejudice, we will remand so that the court can exercise its discretion.
The defendant raises one additional argument regarding the procedure to be followed on remand. He correctly points out that a court is required to review a petition to determine whether it is frivolous and patently without merit within 90 days. If the court does not dismiss the petition pursuant to this provision within that time frame, the court must docket the petition for further proceedings. 725 ILCS 5/122-2.1(a)(2) (West 2006). The defendant contends that these provisions are applicable here. Thus, he contends, because the court did not dismiss the petition within 90 days of filing, it must appoint counsel and docket the matter for further proceedings. See People v. Harris, 224 Ill. 2d 115, 129, 862 N.E.2d 960, 969 (2007); People v. Carter, 383 Ill. App. 3d 795,798,892 N.E.2d 1082, 1085 (2008). We note, however, that he bases this argument on the premise that his petition is not a successive petition. Because we have concluded that it is a successive petition, it cannot be deemed "filed" unless and until the court grants the defendant leave to file it. See LaPointe, 227 Ill. 2d at 44, 879 N.E.2d at 278. Thus, if the court determines that the defendant has demonstrated cause and prejudice, it would still have 90 days in which to determine whether the petition is frivolous and patently without merit.
Accordingly, we reverse the trial court's order dismissing the defendant's petition and remand for further proceedings consistent with this decision.
Reversed; cause remanded.
GOLDENHERSH, P.J., and STEWART, J., concur.